Estate of Alvarez v. The Johns Hopkins University, No. 1:15-cv-00950 (D. Md. Sept. 7, 2016) [click for opinion]

Officials of the United States Public Health Service performed nonconsensual medical experiments on individuals in Guatemala from 1946 into the 1950s. These formerly secret experiments (the "Guatemala Study") became known in 2010. When that occurred, a group of 842 individual plaintiffs (including subjects of the Guatemala Study, their spouses, and descendants) sued The Johns Hopkins University, The Rockefeller Foundation, and Bristol-Myers for damages arising out of the Guatemala Study.

Defendants moved to dismiss Plaintiffs' Second Amended Complaint, arguing, among other things, that Plaintiffs had failed to state a cause of action under the Alien Tort Statute ("ATS"). The court disagreed. Under the ATS, an alien is permitted to bring a claim for torts committed in violation of the law of nations or a treaty of the United States. The court held that this predicate could be met here, as there was a norm of customary international law "prohibiting medical experimentation on human subjects without their consent."

The court also considered how the statute of limitations should apply to these claims. Although the ATS does not itself contain a statute of limitations, federal courts have applied the ten-year statute from the closely analogous Torture Victims Protection Act. Thus, while the court here refused to find that there should be no limitations period for a violation of customary international law, it found at least certain claims could be timely under the more appropriate ten-year statute of limitations period.

Finally, the court also discussed corporate liability under the ATS. The court acknowledged that the current state of the law in the Second Circuit is that corporate liability is not permitted under the ATS. But pointing to a sharply divided Second Circuit in banc opinion—that acknowledged that all other circuits have held to the contrary—the court chose to follow the consensus that there can be corporate ATS liability. The court did not, however, reach the issue of whether corporate liability under the ATS was essentially equivalent to respondeat superior, and thus applicable only to corporate action at the entity's decision-making level.

Because certain claims were not sufficiently pled for each individual Plaintiff, the court granted the motion to dismiss, but granted leave for Plaintiffs to file a Third Amended Complaint asserting an appropriate foundation for its claims, including those brought under the ATS.